April 21, 2009

Van Hollen barks out a memorandum

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.
— Wis. Const. art. I, § 25

Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.
— Wis. Stat. § 947.01

Puzzlement may be the order of the day for the prosecutor class, following the release of Wisconsin Attorney General J.B. Van Hollen's "educational and informational" advisory memorandum (.pdf; 5 pgs.) on open carrying.

The AG was asked by district attorneys to weigh in on the apparent tension between the State constitutional amendment* preserving the right to keep and bear arms and the disorderly conduct statute, in particular the latter's "otherwise disorderly" element, assuming the open carrying of firearms is neither profane, indecent, etc.

The memorandum issues in the wake of the case of State v. Brad Krause, discussed here earlier. Mr. Krause was gardening while pistol-packing in West Allis, for which he was charged with disorderly conduct, but the charge was dismissed (and rightly so, IMHO).

Opines Van Hollen:
For example, a hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge.
So far, so self-evident.
But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection.
I'm not a hunter, but I'm envisioning the "carrying" here in the act of "tracking game" as being poised, cocked, and ready to discharge.

The only differences between Van Hollen's scenarios are their locales, and the "barking."

My Concise OED tells me "barking" means making "a sound resembling this [sharp, explosive] cry ... of a dog, fox, etc." Again, not being a hunter, I don't know whether such cries are intended to attract or repel those creatures or any other potential quarry.

What to make of this? A hunter may carry a loaded shotgun through a crowded street, as long as he doesn't "bark" at passersby? That is, he may speak or even cry, so long as his cries are not sharp or explosive? Or both sharp and explosive?

Or is it the crowded street that arguably negates the constitutional protection, notwithstanding the accompanying cries? And what human population density per square yard constitutes "crowded"?

Van Hollen continues:
The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. . . . If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection.
Now I'm lost. Perhaps the concept has remained the same, but the facts are altered dramatically for more easily portable weaponry.

"Brandish" means "wave or flourish as a threat or in display," the least disorderly of which would be "flourishing in display."

And display, obviously, is synonymous with open carry.

To flourish is to make an ostentatious gesture, the determination of which ostentation, I suspect, could be wildly subjective given, for example, the hot pink Glock 19 pictured above, which is practically an ostentatious gesture in and of itself.

So a Wisconsinite may, with impunity, stiff-arm a cocked and loaded (but non-ostentatious) handgun up and down Water St. of a Friday evening so long as she doesn't "bark" at the other pedestrians?

I doubt it, as such conduct would tend inexorably to a disturbance.

Ultimately, Van Hollen's answer to the question as to when law enforcement may seek a disorderly conduct charge against an open carrier of a firearm is: 'It depends upon the totality of the circumstances.' But they probably already knew that.

Just as they already knew that open carrying per se is constitutionally protected, because the only direct statutory restriction on the constitutional right has to do with concealed carrying, and the Wisconsin Supreme Court [see link**] has already determined that the concealed carry statute doesn't offend the State constitution.

So it's unclear how exactly Van Hollen has clarified the discussion. Indeed, he may have succeeded only in further unclarifying it.

In any event, open carry advocates appear to be pleased. One of them told the Milwaukee Journal-Sentinel that open carriers aren't out to cause a disturbance, but rather to make a political point, "just like a same sex couple going out of their way to hold hands in public."

Except I don't believe that people have to go quite as far out of their way to hold hands in public*** as does a hunter in carrying a cocked and loaded rifle along a crowded downtown thoroughfare.

In the meantime, be sure to keep an eye out for those tightlipped urban sportspersons brandishing political statements.

* The Second Amendment doesn't apply to Wisconsin. Yet.
** Its application to particular circumstances is another matter.
*** Okay, so that guy had to go all the way to Caracas Riyadh.


Rick Esenberg said...

a unanimous Wisconsin Supreme Court has already determined that the concealed carry statute doesn't offend the State constitution.Not quite. In Hamdan, Justice Crooks concluded that 941.23 was unconstitutional. In Fisher, Justices Wilcox and Roggensack concluded that it was unconstitutionally applied to the defendant in that case who kept his gun in his car because he sometimes carried cash from his tavern to the bank.

Anonymous said...

Aw hell. Let's go the full monty.

illusory tenant said...

"In Hamdan, Justice Crooks concluded that 941.23 was unconstitutional."

Right you are. I stand corrected.

illusory tenant said...

That should bring the troops back from Iraq.

Unknown said...

So, I'm continuing this discussion here rather than clog up Emily's blog. I hope that's ok.

In any event, here's what I meant when I said that the DC statute can't be analyzed in the way I took you to think it could. Your post quotes fom of Van Hollen's hypotheticals, first the example about a guy carrying a gun on his own property while tracking game and then the example about a guy walking down the street and barking. You say, "The only differences between Van Hollen's scenarios are their locales, and the 'barking.'" You're mostly correct (there's also the difference that he's out in public), but my point was just that the different locales and the barking are more than sufficient to transform otherwise innocent behavior into disorderly conduct.

In other words, the locales matter. The barking matters. The context matters. Although quietly carrying a gun on private property and walking down the street while barking might seem like very similar things, they aren't for purposes of the DC statute. In my opinion, the former clearly does not constitute DC but the latter clearly does, even putting aside your concerns about what "barking" and "crowded" technically mean.

In short, I don't think Van Hollen's statement is hopelessly unclear. Or, to be more precise, I think that the opinion does an acceptable job of being as clear as possible given an extremely unclear DC statute.